Bonnie Gail WEIRICH, Individually and as Managing Conservator for Charles Jacob Weirich and Jennifer Gail Weirich, Petitioner, v. Opal WEIRICH, Respondent.
No. D-0477
Supreme Court of Texas
June 24, 1992
Rehearing Overruled Sept. 9, 1992
833 S.W.2d 942
John F. Nichols, Lynn S. Kuriger, Larry J. Doherty, Houston, for petitioner.
Douglass D. Hearne, Don W. Kothmann, Austin, for respondent.
OPINION
GONZALEZ, Justice.
This is a child abduction case. Based on favorable jury findings, the trial court rendered judgment for the plaintiff. The court of appeals reversed and rendered a take nothing judgment. 796 S.W.2d 513. Among other things, we must decide whether the record contains some evidence that the respondent, Opal Weirich, violated the
In February 1982, Ralph Noel Weirich (Noel) abducted his two children from their mother, Bonnie Weirich. Noel‘s mother, Opal Weirich, allegedly assisted in the abduction. Bonnie sued her husband, Noel, and her mother-in-law, Opal, for the intentional and negligent infliction of emotional distress, for the intentional and negligent interference with child custody, and for violations of the
The court of appeals dismissed Noel‘s appeal for want of prosecution, reversed the trial court‘s judgment for Opal, and rendered a take nothing judgment. The court held that no direct actions existed for the negligent interference with a family relationship or the negligent infliction of emotional distress, and determined that no evidence and insufficient evidence supported the
On February 1, 1982, Bonnie Weirich petitioned for divorce from Noel Weirich and simultaneously obtained a temporary restraining order preventing Noel from interfering with Bonnie‘s possession of their two children, ages six and seven at that time. On February 4, Noel abducted the children from their school in San Antonio and took them to Johnson City, where the three of them stayed with Opal on the Weirich farm.1 Upon learning of the abduction, Bonnie telephoned Opal, told her of the pending divorce, and asked her to call if she discovered the children‘s whereabouts, which Opal agreed to do. But Opal did not call despite the fact that the children and Noel stayed with Opal between February 4-8, during which Opal purchased new sets of clothing for the children.2
On February 8, a private investigator confronted Noel at Houston‘s Hobby Airport, recovered the two children, and served Noel with the February 1 temporary restraining order. The children were returned to Bonnie later that day. The next day, the trial court extended the order restraining Noel from interfering with Bonnie‘s custodial rights. The court extended that order again on February 19. In the interim, the trial court held a hearing on February 12 during which it appointed Bonnie as temporary managing conservator and further enjoined Noel from interfering with Bonnie‘s right to possess the children.
On February 23, Noel borrowed $4000 from a Johnson City bank on a note cosigned by Opal as guarantor. Noel identified his home address on the note as the Weirich farm in Johnson City. Soon thereafter, Opal loaned Noel her truck, which was used to remove furniture, files, and every item relating to the children from
On February 25, 1982, Noel again abducted the children from their school and took them to Johnson City. Opal then drove Noel and the children to the airport. That evening, Bonnie called Opal to inquire as to the children‘s whereabouts. Opal said that Noel had taken them camping for a couple of weeks, but she did not know where. In fact, Noel had taken the children to Mexico. Bonnie did not see her children again for over seven years.
On March 3, 1982, Bonnie had Opal served with a petition alleging the following three causes of action against Opal and Noel: 1) common law interference with child custody; 2) intentional infliction of emotional distress; and 3) negligent infliction of emotional distress.4 And on March 5, the Bexar County District Attorney notified Opal‘s attorney that Noel had been indicted for child abduction. Additionally, on March 11, Opal was present at a contempt hearing wherein it was alleged that Noel had violated a court order regarding custody. Opal was informed by the trial judge that he expected the custody order to be obeyed. The trial court with jurisdiction over Bonnie‘s divorce proceedings subsequently granted Bonnie a divorce on April 28, 1982, appointed her as permanent managing conservator, and appointed Noel as possessory conservator without visitation rights.
On November 28, 1988, seven days prior to trial, Bonnie amended her petition alleging a cause of action for interference with child custody in violation Chapter 36 of the
§ 36.02 Liability for Interference with Child Custody
(a) A person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a court order that provides for possessory interests in a child may be liable for damages to the person who is denied a possessory interest in the child.
*
(c) Each person who aids or assists in conduct for which a cause of action is authorized by Subsection (a) of this section is jointly and severally liable for damages.
(d) A person who was not a party to the suit in which a court order was issued providing for possessory interests in a child is not liable under this chapter for a violation of the court order unless the person at the time of the violation:
(1) had actual notice of the existence and contents of the order; or
(2) had reasonable cause to believe that the child was the subject of a court order and that his actions were likely to violate the order.
§ 36.07 Notice
(a) As a prerequisite to the filing of suit under this chapter, a person who has been denied a possessory interest in a child in violation of a court order shall give written notice to the person violating the order.
*
(d) Notice need not be given to persons aiding or assisting in conduct for which a cause of action is authorized under this section.
The jury charge, which was constructed from Bonnie‘s statutory allegations, combined the causes of action defined in
We turn now to the
In reviewing the substance of Bonnie‘s
The court of appeals incorrectly concluded that no evidence supported Opal‘s alleged violation of the
The court of appeals erred in concluding that no evidence existed that Opal aided and assisted Noel‘s violation of the
SUMMARY
In summary, we hold that the court of appeals applied the wrong notice standard in determining whether Opal had notice of the temporary restraining order; and that some evidence exists to support the fact that Opal Weirich aided and assisted Noel Weirich‘s violation of the
MAUZY and DOGGETT, JJ., concur with separate opinions.
MAUZY, Justice, concurring.
Three and a half years ago, a Texas jury found that Opal Weirich had been a co-conspirator in the abduction of Bonnie Weirich‘s children. Since that time, Bonnie Weirich has had to fight a seemingly endless battle to obtain any relief for the tragic loss she has suffered.
Because Opal Weirich presented sufficiency of the evidence points of error in the court of appeals, I reluctantly concur in the court‘s decision to remand the cause to that court. I hope, though, that this long struggle for justice will soon come to an end. Given the overwhelming evidence presented, there is no reason why justice should be delayed any further.
DOGGETT, Justice, concurring.
I dreamed [that] I was walking down a suburban street seeing other people‘s children and I stopped to see one in a carriage and I thought it was a sweet child, but I was looking for my child in his face. And I realized, in the dream, that I would do that forever. And I went on walking heavy and sad and woke heavy and sad.1
Bonnie Weirich has suffered perhaps the greatest injury a mother can experience: the loss of her children. Her ex-husband abducted her two young children not twice but three times—first at gunpoint, then by subterfuge, and finally in violation of a temporary restraining order—each time with the apparent assistance of Opal Weirich. The final abduction lasted for over seven years, but in fact, Bonnie may have lost her children forever—by the time they were located they had grown distant from her, and no longer knew the stranger who was their mother.
I.
The applicable sections of chapter thirty-six of the
[I]f there is anybody in this courtroom who loves this man [Opal‘s son] and has feelings for him, like his sister and his mother and I assume his brother, I would strongly suggest that you advise him that court orders are signed by district judges to be adhered to.2
Examples of Opal‘s aiding and assisting are set out by the majority, but there is additional suggestive evidence. During the second abduction, in the first weeks of February, 1982 Opal‘s son and children apparently stayed in a trailer home on her property. Prior to the third kidnapping, Opal loaned her son money, enabling him to flee the country with the children. She provided her truck to remove household belongings which were then stored in her barn. On February 25, he used her car to get the children from school, after which she drove all of them to the airport for a flight to Mazatlan, Mexico. That same day, Opal told Bonnie that the children had gone camping, and at the March 11 hearing she professed unawareness by testifying that she would “notify th[e] court” if she learned of the children‘s whereabouts. As noted by the majority, however, only two days after the abduction, Opal‘s son had called her from Mazatlan, confirming the children‘s location. Despite all of this, she continued not to advise the court of her son‘s visits and communications. Any reasonable reading of this record, particularly when viewed in the light most favorable to the findings of fact, inescapably supports the jury‘s finding that Opal assisted her son in concealing the whereabouts of Bonnie‘s children, despite actual or constructive knowledge of a court order.
II.
By resolving this cause entirely on statutory grounds, the majority “express[es] no opinion on the correctness of the court of appeals’ writing on negligent infliction of emotional distress and negligent interference with a family relationship.” At 946. This reluctance to reach Bonnie‘s common law causes of actions should in no way be
Because other causes of action may be brought in conjunction with the statutory action for interference with child custody, Bonnie properly pursued her common law claims. If on remand the court of appeals should somehow find factually insufficient evidence of a statutory violation, Bonnie is still free to appeal again to this court her negligence claims. Such delay, however, is unwarranted. As this court previously declared, “[d]irecting a mother who has been deprived of her child for ... years ‘to go and start over’ is unconscionable, and compounds the error of the lower courts.” Lewelling v. Lewelling, 796 S.W.2d 164, 168 n. 9 (Tex.1990) (citations omitted).
Regarding the cause of action for negligent interference with the family relationship, the court of appeals perceptively concluded that Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), did not create such a cause of action, but rather dealt with a damages issue. This court has neither expressly acknowledged nor rejected an independent action for negligent interference with family relationship. We have recognized, however, that negligence can cause
To the extent that the fifteen year old provision of the Restatement of Torts on which the court of appeals relies can be read as recognizing only an action for intentional interference with the family relationship, 796 S.W.2d at 515-16 (citing Restatement (Second) of Torts § 700 (1977)), this does not comport with Texas’ allowance of mental distress damages in negligence actions.3 Furthermore, there seems to be some conflict in the Restatement itself, for while the wording of the relevant section uses language of intent, its commentary seems to be consistent with the general rule in Texas that serious injuries resulting from any conduct interfering with the family relationship should be compensated: “[t]he deprivation to the parent of the society of the child is itself an injury that the law redresses.” Restatement (Second) of Torts § 700, comment d (1977).4
Similarly, the court of appeals concluded that there is no Texas authority recognizing “an independent cause of action for negligent infliction of emotional distress in the context of a child abduction case.” 796 S.W.2d at 516. In fact, even the Fifth Circuit has recognized that mental suffer-ing damages are recoverable under Texas law in child abduction cases. See Fenslage v. Dawkins, 629 F.2d 1107, 1110 (5th Cir. 1980).
The court of appeals is hasty in its conclusion that this court has never explicitly created a cause of action for negligent infliction of emotional distress. In St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649 (Tex.1987), we repeatedly referenced the “tort of negligent infliction of mental anguish,” id. at 651-52, 654, though admitting that the “[d]evelopment and administration of [this] tort have been inconsistent and confusing.” Id. at 651. We therefore looked to guidance from other jurisdictions, and in large part followed the lead of California, whose experience on this particular subject remains informative.
In 1968, the California Supreme Court recognized that a bystander who observed an injury to a closely related third person could state a cause of action for negligent infliction of emotional distress despite the absence of any physical manifestation of injury. Dillon v. Legg, 68 Cal. 2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968). Twelve years later, Molien v. Kaiser Found. Hosps., 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 (1980), allowed such a recovery in a non-bystander case. In 1989, in another bystander case, the court focused on establishing a duty of care as a necessary element of recovery in a negligence action. Thing v. La Chusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 869-70, 771 P.2d 814, 818-19 (1989). The court criticized, but did not overrule Molien for implying that negligent infliction of emotional distress was a separate cause of action. Id. 257 Cal.Rptr. at 874, 771 P.2d at 823. Additionally, it suggested that, excepting bystander cases, emotional distress damages may be recoverable in a negligence action only where the party seeking recovery is the “direct victim” of that negligence. Id. 257 Cal. Rptr. at 866, 771 P.2d at 815. That same year, the court decided that negligent infliction of emotional distress is encompassed by the general tort of negligence, with the traditional elements of duty and causation, rather than existing as an independent cause of action. Marlene F. v. Affiliated Psychiatric Medical Clinic, 48 Cal.3d 583, 257 Cal.Rptr. 98, 102, 770 P.2d 278 (1989). Thus, since Molien‘s inception, California has apparently moved toward concluding that there is no cause of action for negligent infliction of emotional distress, but rather that emotional distress is an element of damages in a traditional negligence action. See generally B.E. Witkin, 6 Summary of California Law §§ 838-57 at 194-220 (9th ed. 1988 & Supp. 1991).5 Like any other negligence action, damages need not necessarily be accompanied by a physical injury, although the California courts limit the recovery of solely emotional damages to cases where the non-physical injury is severe. See Marlene F., 257 Cal.Rptr. at 102, 770 P.2d at 281-82. Our court has agreed that a physical manifestation requirement is an “arbitrary restriction[] on recovery.” St. Elizabeth Hospital, 730 S.W.2d at 654.6
If Texas does recognize a separate tort of negligent infliction of emotional distress, a question not answered today, then the court of appeals erred. If there is no separate tort, and rather, like California, emotional distress is solely a question of damages, then Bonnie need only have plead and shown negligence to justify her recovery for the severe mental suffering she has experienced. Her pleadings are sufficient to support such a cause, since they allege “negligence” in the interference with the family and “negligence” in inflicting emotional harm. Certainly all of the traditional negligence elements are present8: Opal owed Bonnie the duty not to assist in the children‘s kidnapping, a legal duty on which chapter thirty-six of the
III.
In light of the foregoing, I concur with the majority that there was some evidence of a statutory violation in this instance. Because there was also an insufficiency point raised, the cause must be remanded for further consideration by the court of appeals.12 The wheels of justice have turned slowly for Bonnie, whose children were stolen from her ten years ago. By failing to address the issues above, today‘s opinions have only ensured a continued slow grind through the system.